Issues

Policy study essential for legal education reform

Nikhil Moro, Ph.D., a Public Policy Scholar with The Hindu Centre, argues that it is vital to incorporate policy studies into the curricula of Indian law colleges in order to realise rule of law.

As democratic aspirations mature, the law, in all its majesty, has never been more germane to the Indian republic. But legal education, in all of the 722 departments or universities of law that the Bar Council of India recognised in January 2013, has systematically de-emphasised, if not excluded, policy studies.

This essay distinguishes policy from law to discuss why imperatives of rule of law might require law schools to co-opt public policy into undergraduate legal curricula.

Negotiating a symbiotic theory of policy

Law is fundamental to modern society, but so is public policy. Consider:

• If law is a code of conduct established and enforced for all of society by duly constituted authority, then policy refers to decisions made, applied and assessed typically by the executive branch to manage public resources consistently with the legal intent. Consequently, while law can lay out a framework of sanctions, policy helps the state astutely enforce the legal intent. If law is the social mind, then policy is the hand – expected to act mindfully.

• Public policy not only enables the law to emerge from the books and acquire political meaning, it also determines the legal epistemological boundaries.

• Sources of law in India include the Constitution of India, acts of legislature, international treaties, regulations of quasi-judicial agencies, equity pronouncements, and the common law.

• Sources of public policy, typically, are decisions and orders of the Cabinet, of autonomous regulatory agencies, and of the respective subservient bureaucracy. The critical sociologist Max Weber has identified bureaucracy in hierarchical authority, delegated jobs, reliable procedure and, of course, red tape.

• Because public policy is a prerogative of the executive branch, it is subject to civil society inputs, media criticism and parliamentary debate, all contributing to make it relatively fluid. The law, on the other hand, is expected to be more solid, regardless of the theory of constitutional interpretation applied.

• Because enforcement of law, as well as the formulation and enforcement of public policy, all are prerogatives of the executive branch, the powers of the Cabinet and its bureaucracy are unrivalled in range in the legislature or judiciary.

• Studies of policy, the media economist Alan Albarran notes, typically “attempt to analyze the impact of [specific] regulatory actions and decision-making on existing markets and industries.”

Illumining intent, enabling meaning

From those assumptions emerges a theory of public policy consistent with legal positivism but bereft of normative goals. In order to advance justice, liberty, equality or fraternity, as envisaged in the preamble of the Constitution, policy would be necessarily subject to grassroots politics. Consequently, public policy would play two distinct functions in the rule of law:

1. Illumining the letter of the law and giving life to the legal intent; and

2. Enabling the executive branch to find political meaning in the law.

Several examples are available to illustrate the above two functions. Evidently, Indian society has a legal heritage that dates back a few millennia, although there is little evidence of distinct public policy in the absence of the modern principle of checks and balances that emerged in the Constitution in 1950.

The history of a legal system, for example, has been traced to pre-Maurayan India of some 2,700 years ago, when the Dharmasūtras and the Arthaśāstra were sources of Law. The Gazetteer of India edited by the historian Pran Nath Chopra states that the Dharmasūtras (5th to 3rd cent. BC) – which constituted the earliest codified law – included “the customs and practices of regions and villages, of castes and families and of functional groups.” The Dharmasūtras were not homogenous, as from a single text or oracle, but diversely plural. The Arthaśāstra (4th cent. BC) similarly enumerated multiple sources of state law, “sacred canons, current law, usage and reason,” all subject to syllogistic interpretation. In addition, the colossal textual corpus and scholastic tradition, the Dharmaśāstra, primarily comprising 18 smritis dating to an estimated 200 BC, represented the earliest legal rhetoric and theory.

It is unclear if any of those sources ever had the unequivocal authority that law presumes in modern society, but along with the itihasas of Ramayana and Mahabharata, they certainly constituted experiments or prescriptions of social theory. Further, debates about proper limits of libertarian freedoms are found to have occurred in Ashoka’s India – some 250 years before the word “freedom” was first used in any royal decree (in 24th cent. BC, when Sumerian king Urukagina famously “established the freedom” of his subjects).

If there is a lesson in that heritage of plurality, it is that pluralism offers not just a useful lens but also a normative framework to understand the structure of law beyond the state. A post-national law privileges not civic-liberal national boundaries but a presumptive syncretism of diverse legal theory. Pluralism thus makes the task of inclusive nation-building that much more arduous, but it also enables policy makers to enliven legal intent or make political meaning in the law – which of course are the functions of policy.

The discourse of pluralism, however, is too often tethered to the Constitution. Even as a plural heritage is evident and preserved in the ruins of hoary Indian law, the bustle of Indian constitutional democracy has catalyzed two key revisions of the ancient legal theory. First, as the pre-eminent ancient-legal philosopher Pandurang V. Kane has pointed out, in Constitutional India, the focus of jurisprudence has shifted from obligations to rights.

Second, the dateless normative expectation that law ought to invoke meditations of social responsibility through pursuit of any spiritual emancipation has been rejected in the constitutional jurisprudence. Both of those shifts are reflected in modern Indian public policy.

Realising the rule of law

Modernity means to subject the individual will to a dominance of institutions, especially those of the state or religion or marketplace. Modern societies, consequently, tend to evolve in legal and policy institutions. They privilege the rule of law, which, in opposition to rules by man, "divine will" or brutality, is best understood in the 17th-century English clergyman Thomas Fuller's cry, "Be ye ever so high, still the law is above you."

The rule of law is qualified by seven necessary presumptions: the law is legitimately produced, necessarily enforced, equally obeyed regardless of an individual's political or financial status, prospectively applied, independently adjudicated, easily accessible, and written in language that is clear and determinate. In India, article 14 forbids the state from denying any individual “equality before the law or the equal protection of the laws” – language partly taken from the 14th amendment of the U.S. Constitution.

A litigious society founded in civil law, especially in tort actions by which prevailing plaintiffs win damages but losing defendants do not lose their liberty or life, is the legal function of modernity. It is a far advance from older rules in which rivals might settle disputes outside of court with, say, duels.

Legal education and literacy: a way forward

Regardless of the pluralistic legal heritage, how successful has free India been in achieving, let alone realising, the rule of law? In the absence of random-sample surveys, anecdotal evidence, at least in urban India, of public discontent with or cynicism of public officials’ bungling, bribery and pandering, suggests, to an unacceptably small degree. But if there is any panacea to the seemingly dire situation, it might well lie in policy studies, targeting abysmal legal literacy as well as quelling inertia in the quality of legal education.

Legal literacy, a central imperative of the rule of law, has never been measured but sources of law, and legal resources, are increasingly accessible online. The Bar Council of India, established in the Advocates Act of 1961, is entrusted with not only regulating Indian lawyers and their profession, but also prescribing norms of legal education (per section 7 of the act), accrediting law programmes (section 10), and defining rules of admission and graduation (section 49).

Formal legal education is of relatively recent historicity, even though the Indian legal heritage is ancient. In the late 19th century, India had a few law colleges in Ernakulam, Allahabad, Mumbai, Madras, Meerut and Bareilly, with the best-regarded law graduates still passing out from elite English universities. Of the present law colleges, two-thirds were set up in the last three decades; the first legal university, focused entirely on education in law, was opened in Bangalore only in recent years. In January 2013, the Bar Council recognised 709 law colleges or departments, in addition to 13 universities focused entirely on law. None of them included policy studies in their undergraduate curricula.

Even as Indian legal education becomes more accessible, a perception of poor quality has emerged as its possible Achilles’ heel. Among factors that have significantly hobbled it are uneven curricular vigour, inaccessible primary sources (such as acts of legislature or Shepardized cases), few incentives for publishing peer-reviewed legal research, a Bar Council that is widely perceived as deficient in accomplishing its oversight mandate, and low public trust in government. Textbooks are available easily, but relative to say a typical law student in the United States, the Indian law student still has woefully little access to secondary literature such as law reviews. New knowledge and fresh, bold insights – cutting edge research – are generally unavailable.

Even 66 years after political Independence, Indian jurists still tend or prefer to view issues through a lens of Western critical-cultural theory and continue to cite non-native precedent. Legal opinions of trial judges, who preside over a key period of a dispute when facts are established in open court, are surprisingly inaccessible, if they are even available. Those issues need to be urgently addressed. But another, a structural issue, has been inadequately discussed: a systematic de-emphasis if not exclusion of policy studies in legal curricula and, to that extent, also in national discourse about the rule of law.

Policy has been like the errand boy who runs around the office all day, yet is systematically ignored when it is time for a meeting. Incorporating its studies and method in law college curricula would empower students to celebrate the rule of law as well as enhance legal literacy in citizens. At the Harvard Law School, 23 research programs and centres help provide that connective tissue of theory and practice: the Spring 2014 catalogue includes courses titled Communications and Internet Law and Policy (taught by Yochai Benkler), Climate Energy Law and Politics (Jody Freeman), Behavioral Economics and Public Policy (Cass Sunstein), and Corporate and Capital Markets Law and Policy (Lucian Bebchuk), among dozens of others. Indian law programs could emulate Harvard to develop their own tandem functions with agencies and governments, thereby expanding dialogue, linking legislators with bureaucrats, and having an interdisciplinary, lateral impact on the democracy through the vital discipline of policy studies.

REFERENCES:

Albarran, Alan B. The Media Economy. New York: Routledge, 2010.

Chopra, P.N. The Gazetteer of India, vol. 2. New Delhi: Publications Division, 2003.

The Constitution of India, accessed June 2, 2013. http://lawmin.nic.in/coi/coiason29july08.pdf.

Constitution of the United States, accessed June 1, 2013. http://www.archives.gov/exhibits/charters/constitution_transcript.html.

Dahl, Robert A. Polyarchy: Participation and Opposition. New Haven, Conn.: Yale University Press, 1971.

“How to Shepardize.” LexisNexis, accessed June 2, 2013. http://www.lexisnexis.com/infopro/training/reference/shepards/shepardscompgd.pdf.

Kane, Pandurang Vaman. History of Dharmaśāstra, vol. 3. Poona, India: Bhandarkar Oriental Research Institute, 1946.

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